CA No 81 of 2012 SC No 128 of 2012 SC No 891 of 2011
DIVISION:
Court of Appeal
PROCEEDING:
Sentence Application
ORIGINATING COURT:
Supreme Court at Brisbane
DELIVERED ON:
2 November 2012
DELIVERED AT:
Brisbane
HEARING DATE:
25 October 2012
JUDGES:
Muir, Fraser and Gotterson JJA Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:
Application for leave to appeal refused.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant was convicted upon pleas of guilty of trafficking dangerous drug methylamphetamine, trafficking dangerous drug cannabis, two counts of possessing a dangerous drug, possessing a dangerous drug in excess of two grams, possessing a prohibited combination of items, possessing a thing used in connection with trafficking in a dangerous drug, possessing property obtained from trafficking and a summary drug offence – where applicant sentenced to a concurrent term of six years with parole eligibility after 18 months – where applicant contended sentence was manifestly excessive – where applicant contended sentencing judge failed to give weight or proper weight to co-operation with authorities – where applicant argued sentencing judge failed to give weight to or proper weight to the circumstances of applicant and his rehabilitation since offence – where applicant argued sentencing judge erred in giving weight or unreasonable weight to his belief that applicant had a strong capacity and influence over his co-accused – whether sentence was manifestly excessive
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – PARITY BETWEEN CO-OFFENDERS – where applicant contended that the applicant’s sentence is manifestly excessive when compared with co-accused – where co-accused was a youthful first offender and the applicant a more mature offender with a criminal record – where co-accused under influence of applicant – whether sentence was manifestly excessive compared with co-accused
S T Courtney for the applicant D L Meredith for the respondent
SOLICITORS:
Justin Grosby Solicitors for the applicant Director of Public Prosecutions (Queensland) for the respondent
MUIR JA: I agree that leave to appeal should be…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
R v Tout [2012] QCA 296
Case
[2012] QCA 296
Decision Date
CaseChat Overview and Summary
The case of R v Tout involved the applicant appealing against his sentence on the grounds that it was manifestly excessive and inadequate, following his conviction for multiple drug-related offences. The applicant was found guilty of trafficking dangerous drugs, possessing dangerous drugs, and other related charges. He was sentenced to a concurrent term of six years with parole eligibility after 18 months. The applicant argued that the sentence was excessive, claiming that the sentencing judge did not adequately consider his cooperation with authorities, the circumstances of his offence, and his rehabilitation efforts since the offence. Additionally, the applicant contended that the sentence was excessive when compared with his co-accused, who was a first-time offender under the applicant's influence.
The legal issues at the heart of this appeal were whether the sentence was manifestly excessive and whether the sentencing judge erred in not adequately considering the applicant's cooperation, personal circumstances, and rehabilitation efforts, as well as the disparity between the applicant's sentence and that of his co-accused. The court had to assess if the sentence was proportionate and balanced, taking into account all relevant mitigating and aggravating factors.
In assessing the appeal, the court considered the severity of the crimes, the applicant's criminal history, and the extent of his cooperation with law enforcement. The court also weighed the disparity between the applicant's sentence and that of his co-accused, who had less culpability. Ultimately, the court determined that the sentence was neither manifestly excessive nor inadequate. The court found that the sentencing judge had appropriately considered the mitigating factors and that the sentence reflected the seriousness of the offences and the need to deter similar conduct.
The application for leave to appeal was therefore refused.